1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FOOD & WATER WATCH,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF 

AGRICULTURE, et al.,

Defendants.

Civil Action No. 17-1714 (BAH)

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Food & Water Watch (“FWW”), has filed a nine-count complaint against 

three defendants, the United States Department of Agriculture (“USDA”), the Farm Service 

Agency (“FSA”), and Deanna Dunning, in her official capacity as an FSA Farm Loan Officer 

(collectively, “defendants”), under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, 

et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–70, seeking an 

order and judgment setting aside an environmental assessment completed by the defendants in 

connection with a nonparty farm’s “application for a guaranteed loan to construct and operate a 

poultry concentrated animal feeding operation,” “[d]eclaring that Defendants violated NEPA by 

failing” to complete an adequate environmental impact statement in connection with the loan 

application, and “[e]njoining implementation of Defendants’ loan guarantee.” Compl. ¶¶ 1, 5, 

ECF No. 1. The defendants have moved for judgment on the pleadings pursuant to Federal Rule 

of Civil Procedure 12(c), contending that the plaintiff’s claims are moot and that the plaintiff 

lacks standing, see generally Defs.’ Mot. J. Pleadings (“Defs.’ Mot.”), ECF No. 17, while the 

plaintiff has moved to compel the complete Administrative Record (“AR”), see generally Pl.’s 
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Mot. Compel AR (“Pl.’s Mot. Compel”), ECF No. 18.

1

 For the reasons described below, the 

plaintiff’s claims are not moot and the plaintiff has standing to pursue this lawsuit. Accordingly, 

the defendants’ motion is denied while the plaintiff’s motion is granted.2

I. BACKGROUND

The statutory framework governing the plaintiff’s claims is discussed first, followed by 

the details of the loan and environmental assessment at issue in this case.

A. Statutory Framework

1. NEPA Environmental Assessments

The NEPA represents “a broad national commitment to protecting and promoting 

environmental quality,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989) 

(citing 42 U.S.C. § 4331), and was created, in part, for the purpose of “establish[ing] a set of 

‘action forcing’ procedures requiring an environmental impact statement on any proposed major 

Federal action which could significantly affect the quality of the environment,” S. REP. NO. 94-

152, at 3 (1975). To this end, the NEPA requires federal agencies, “to the fullest extent 

possible,” to prepare and include an Environmental Impact Statement (“EIS”) in “every 

recommendation or report on proposals for legislation and other major Federal actions 

significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C); see also 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 15–16 (2008), and to consider a number of 

factors, including “the environmental impact of the proposed action,” “any adverse 

 1 In support of the plaintiff’s motion to compel, the plaintiff offered a declaration with accompanying 

exhibits. See generally Decl. of Tarah Heinzen (FWW) (“Heinzen Decl.”), ECF No. 19. Although each exhibit and 

submission from the parties has been reviewed, only those exhibits necessary to provide context for resolution of the 

pending motions are cited herein. Moreover, although the defendants’ motion is styled as a “Motion to Dismiss the 

Plaintiff’s Complaint,” Defs.’ Mot. at 1, the defendants are seeking such dismissal pursuant to Federal Rule of Civil 

Procedure 12(c) and thus seek “judgment on the pleadings” under that Rule, id. See also FED. R. CIV. P. 12(c). 2 The defendants’ claims essentially amount to an argument that the complaint should be dismissed, under 

Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction. Under either the Rule 12(b)(1) or 

the Rule 12(c) standard, however, the defendants’ motion would be dismissed for the reasons stated herein.
3

environmental effects which cannot be avoided should the proposal be implemented,” and 

“alternatives to the proposed action,” 42 U.S.C. § 4332(2)(C)(i)–(iii). “The statutory 

requirement that a federal agency contemplating a major action prepare such an [EIS] serves 

NEPA’s ‘action-forcing’ purpose in two important respects,” Robertson, 490 U.S. at 349, by 

(1) “ensur[ing] that the agency, in reaching its decision, will have available, and will carefully 

consider, detailed information concerning significant environmental impacts,” and 

(2) “guarantee[ing] that the relevant information will be made available to the larger audience 

that may also play a role in both the decisionmaking process and the implementation of that 

decision,” Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 188 (D.C. Cir. 2013) (quoting 

Robertson, 490 U.S. at 349).

“The Council of Environmental Quality (CEQ), established by NEPA with authority to 

issue regulations interpreting it, has promulgated regulations to guide federal agencies in 

determining what actions are subject to” the EIS requirement. Dep’t of Transp. v. Pub. Citizen, 

541 U.S. 752, 757 (2004) (citing 40 C.F.R. § 1500.3). Under these regulations, an agency may 

prepare “a more limited document, an Environmental Assessment (EA), if the agency’s proposed 

action neither is categorically excluded from the requirement to produce an EIS nor would 

clearly require the production of an EIS.” Id. (citing 40 C.F.R. § 1501.4(a)–(b)). An EA is a 

“‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for 

determining whether to prepare an [EIS].’” Id. (alterations in original) (quoting 40 C.F.R. 

§ 1508.9(a)). If, after conducting an EA, the agency determines that an EIS is not required under 

the applicable regulations, “it must issue a ‘finding of no significant impact’ (FONSI), which 

briefly presents the reasons why the proposed agency action will not have a significant impact on 

the human environment.” Id. at 757–58 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). During this 
4

process, the agency “must insure that environmental information is available to public officials 

and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b); see 

also Robertson, 490 U.S. at 349 (noting that this disclosure requirement “guarantees that the 

relevant information will be made available to the larger audience that may also play a role in 

both the decisionmaking process and the implementation of that decision”).

All federal agencies are required to comply with the NEPA and the CEQ regulations, but 

the regulations “allow each agency flexibility in adapting its implementing procedures.” 40 

C.F.R. § 1507.1; see also id. § 1507.3(a) (requiring agencies to “adopt procedures to supplement 

these regulations”). At the time of the actions at issue in this lawsuit, the FSA had promulgated 

such regulations. See 7 C.F.R. §§ 1940.301–350 (2015).3

 Those FSA regulations require the 

preparation of an EA for “Class I” and “Class II” agency actions. Id. §§ 1940.311–312 (2015). 

“Class I” actions are “smaller scale approval actions,” id. § 1940.311 (2015), including certain 

expansions of FHA housing projects, certain community and business grant programs, and 

certain farm programs, id. § 1940.311(a)–(c) (2015), and require a less rigorous EA, id.

§ 1940.311 (2015) (“The scope and level of detail of an assessment for a small-scale action, 

though, need only be sufficient to determine whether the potential impacts are substantial and 

further analysis is necessary.”). “Class II” actions, by contrast, “are basically those which 

exceed the thresholds established for Class I actions and, consequently, have the potential for 

resulting in more varied and substantial environmental impacts.” Id. § 1940.312 (2015). “A 

 3 The FSA updated its regulations in August 2016, withdrawing the regulations previously codified at 7 

C.F.R. §§ 1940.301–350 and replacing them with new regulations codified at 7 C.F.R. §§ 799.1–59. See generally

FSA, Final Rule, Environmental Policies and Procedures; Compliance with the National Environmental Policy Act 

and Related Authorities, 81 Fed. Reg. 51,274 (Aug. 3, 2016). The new regulations do “not have retroactive effect,” 

id. at 51,283, and accordingly, the regulations in effect at the time of the actions at issue in this lawsuit govern this 

case.
5

more detailed environmental assessment is, therefore, required for Class II actions in order to 

determine if the action requires an EIS.” Id.

Class II actions include certain actions that “involve a livestock-holding facility or 

feedlot.” Id. § 1940.312(b)(1) (2015). As relevant to the instant lawsuit, such actions include 

“[f]inancial assistance,” such as loan guarantees, for “a livestock-holding facility or feedlot 

located in a sparsely populated farming area having a capacity as large or larger than,” inter alia, 

“100,000 laying hens or broilers when [the] facility has unlimited continuous flow watering 

systems,” id. § 1940.312(c)(9) (2015), as well as “[f]inancial assistance for a livestock-holding 

facility or feedlot which either could potentially violate a State water quality standard or is 

located near a town or collection of rural homes which could be impacted by the facility,” id.

§ 1940.312(c)(10) (2015). If the EA for a loan guarantee includes environmental recommendations

or mitigation measures to be taken in connection with the loan guarantee, such measures “must 

be documented in the assessment . . . and placed in the offer of financial assistance as special 

conditions.” Id. § 1940.318(g) (2015). In addition, the FSA is responsible for “post-approval 

inspection and monitoring of approved projects” to “ensure that those measures which were 

identified in the preapproval stage and required to be undertaken in order to reduce adverse 

environmental impacts are effectively implemented.” Id. § 1940.330(a) (2015).

2. The FSA’s Guaranteed Farm Loan Program

The FSA, formerly known as the “Farmers Home Administration,” oversees agricultural 

support programs including, as relevant here, the Guaranteed Farm Loan Program. See 7 C.F.R. 

§ 762.101, et seq. Under this program, a borrower can apply to have the FSA guarantee a 

percentage of a loan made by a qualified agricultural lender for purposes including “[a]cquir[ing] 

or enlarg[ing] a farm”; “[m]ak[ing] capital improvements,” such as “the construction, purchase, 

and improvement of a farm dwelling, service buildings and facilities that can be made fixtures to 
6

the real estate”; “[p]romot[ing] soil and water conservation and protection”; “[p]ay[ing] closing 

costs”; and “[r]efinancing indebtedness incurred for authorized [farm ownership loan] and 

[operating loan] purposes.” Id. § 762.121(b)(1)–(5). The FSA’s guarantee “will not exceed 90 

percent based on the credit risk to the lender and the Agency both before and after the 

transaction,” id. § 762.129(a), but the precise percentage of the guarantee is left to the FSA, id. 

As part of their application for an FSA loan guarantee, borrowers must certify that they are 

“unable to obtain sufficient credit elsewhere without a guarantee to finance actual needs at 

reasonable rates and terms.” Id. § 762.120(h)(1).

Once the FSA has guaranteed a loan, “[l]enders are responsible for servicing the entire 

loan in a reasonable and prudent manner, protecting and accounting for the collateral, and 

remaining the mortgagee or secured party of record.” Id. § 762.140(a)(1). Lenders must also 

“[e]nsur[e] the borrower is in compliance with all laws and regulations applicable to the loan, the 

collateral, and the operations of the farm.” Id. § 762.140(b)(3). The FSA stays involved, 

however, and is responsible for “post-approval inspection and monitoring of approved projects” 

to “ensure that those measures which were identified in the preapproval stage and required to be 

undertaken in order to reduce adverse environmental impacts are effectively implemented.” Id.

§ 1940.330(a) (2015).

B. The FSA’s Loan Guarantee for the One More Haul Farm Concentrated 

Animal Feeding Operation

This lawsuit arose from nonparty One More Haul farm’s (“OMH’s”) application for an 

FSA-guaranteed loan “to construct and operate a poultry concentrated animal feeding operation,” 

or “CAFO,” in Caroline County, Maryland, on a 114.9-acre parcel of land. Compl. ¶¶ 1, 46. 

According to the Complaint, OMH applied for a loan guarantee through the Guaranteed Farm 

Loan Program in 2015 “in order to purchase land and construct and operate a poultry CAFO on 
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it, consisting of four broiler chicken houses, a manure structure, and a mortality composting 

structure.” Id. ¶ 42. The OMH CAFO, which is now built and operating, “houses 192,000 birds 

at one time, and will have an average of 5.6 flocks per year, producing more than 1,000,000 birds 

and their waste each year.” Id. ¶ 46. Accordingly, a federal loan guarantee for OMH’s CAFO 

qualifies as a Class II action for which a complete EA is required. See 40 C.F.R. § 1940.312(c)(9)–

(10) (2015); Defs.’ Mem. Supp. Mot. J. Pleadings (“Defs.’ Mem.”) at 2, ECF No. 17-1 (“FSA is 

required to complete an environmental review prior to making a commitment to issue a loan 

guarantee.”).

As required by the NEPA and the corresponding regulations, the FSA completed a draft 

EA describing the environmental impacts of the proposed CAFO, which was made available for 

public comment on May 22, 2015. Id. ¶ 43. On July 20, 2015, the plaintiff and one of its 

members submitted comments on the draft EA. Id. Two days later, on July 22, 2015, the FSA 

finalized the EA “with no substantive changes,” and the loan guarantee was signed and approved 

the next day. Id.; see also Defs.’ Answer ¶ 43, ECF No. 12. The total loan amounted to 

approximately $1,217,000, of which the FSA guaranteed the maximum 90 percent, or 

approximately $1,095,300. Compl. ¶ 42; see also 7 C.F.R. § 762.129(a).4

The plaintiff alleges that, during the EA process, “FSA initially failed to make many key 

documents available to Plaintiff and the public during the comment period” and that the plaintiff 

“was forced to file a Freedom of Information Act (FOIA) request to obtain them.” Compl. ¶ 44. 

In addition, the plaintiff argues that the EA prepared for the OMH CAFO was inadequate, given 

its failure to address several environmental impacts. Specifically, the plaintiff contends that the 

EA failed to consider “the potential water quality impacts on the Corsica River due to the land 

 4 The details of the approved loan, including the term of the loan and the remaining balance of the loan, 

remain unknown on the record before the Court.
8

application of waste from OMH,” id. ¶ 52; “the unusual density of chicken production at the site, 

and the fact that it dramatically exceeds the average density of the region’s numerous other 

broiler chicken CAFOs,” id. ¶ 54; “the effects of OMH’s water withdrawals,” id. ¶ 55; the effect 

on the “27 migratory birds of concern [that] might be affected by the proposed project” or the 

“potential effects on biological resources,” id. ¶ 56; the “air impacts” of the CAFO, id. ¶ 57; or 

the “cumulative impacts of th[e] proliferation and concentration” of CAFOs in the surrounding 

area, id. ¶ 59. The plaintiff also contends that the defendants failed to analyze OMH’s Nutrient 

Management Plan, Stormwater Management Plan, and Conservation Plan, under which the 

CAFO was to operate. Id. ¶ 53.

C. Litigation History

Plaintiff FWW, a District of Columbia “non-profit corporation that champions healthy 

food and clean water for all by standing up to corporations that put profits before people and 

advocating for a democracy that improves people’s lives and protects the environment,” id. ¶ 8,

filed its complaint on August 23, 2017, alleging violations of the NEPA and the APA based on 

the defendants’ failure to conduct an adequate EA and EIS for the OMH CAFO, id. ⁋⁋ 60–121. 

FWW “has thousands of members who reside in Maryland, including a member who resides next 

door to the OMH CAFO” and “lives in such close proximity to the CAFO that it is decreasing 

the enjoyment and privacy of her home and causing her concern over potential adverse health 

impacts.” Id. ¶ 8. This member “owns property and lives in the area that is directly impacted by 

the CAFO’s dust, dander, noise, smell, ventilation fans, truck traffic, manure storage facilities, 

and mortality composting area,” and this proximity to the CAFO has subjected her to “loud 

noises at all hours of the day, bright lights that remain on all night, foul odors, and large numbers 

of flies in and around her residence.” Id. In addition, she “is concerned that she and her visitors 

will experience adverse health effects from the CAFO’s pollution,” and she is “fearful to allow 
9

family members with asthma to visit because they may be more susceptible to air pollution.” Id. 

Another FWW member “regularly fishes for bass in Watts Creek—which is in the vicinity of the 

CAFO—and the downstream Choptank River”; “has invested significant time and resources into 

creek stocking and restoration projects”; and “is concerned about the CAFO’s likely water 

pollution impacts and the general impacts of industrial development on the character and 

aesthetic beauty of the areas where he fishes.” Id.

In accord with the Scheduling Order proposed by the parties and entered by the Court, 

see Minute Order (dated Nov. 13, 2017), on December 6, 2017, the defendants produced an 

Administrative Record and filed an index of the Administrative Record with the Court, see

Notice of Lodging of AR Index (“AR Notice”) at 1, ECF No. 14. Shortly thereafter, however, 

the parties advised that “they ha[d] reached an impasse as to the documents that should be 

included in the Administrative Record.” Jt. Status Report (dated Feb. 16, 2018) at 2, ECF No. 

16. The plaintiff contended that the Administrative Record was incomplete because it did not 

include “records related to the Farm Service Agency’s federal loan guarantee,” id. at 3, including 

“the loan guarantee application—which triggered FSA’s NEPA analysis—and the loan guarantee 

itself, which is the federal action Plaintiff challenges,” id. at 4. The defendants, in turn, argued

that “the Complaint suffers from incurable jurisdictional defects” that “will obviate the need for 

further litigation.” Id. at 2. The Court accordingly set a briefing schedule for both the 

defendants’ motion for judgment on the pleadings and the plaintiff’s motion to supplement the 

Administrative Record, which motions are now ripe for review.

II. LEGAL STANDARD

A. Motion for Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment “[a]fter 

the pleadings are closed—but early enough not to delay trial.” FED. R. CIV. P. 12(c). A Rule 
10

12(c) motion “shall be granted if the moving party demonstrates that no material fact is in 

dispute and that it is entitled to judgment as a matter of law.” Stewart v. Evans, 275 F.3d 1126, 

1132 (D.C. Cir. 2002) (internal quotation marks omitted); see also Haynesworth v. Miller, 820 

F.2d 1245, 1249 n.11 (D.C. Cir. 1987) (explaining that “Rule 12(c) requires that the movant 

show, at the close of the pleadings, that no material issue of fact remains to be solved, and that he 

or she is clearly entitled to judgment as a matter of law”), abrogated on other grounds by 

Hartman v. Moore, 547 U.S. 250 (2006); Noel v. Olds, 149 F.2d 13, 14 (D.C. Cir. 1945) (noting 

that “if material questions of fact are presented by the pleadings, the remedy by motion for 

judgment on the pleadings under Rule 12(c) is not available”). In deciding a motion brought 

under Rule 12(c), a court must “view the facts presented in the pleadings and the inferences to be 

drawn therefrom in the light most favorable to the nonmoving party.” Moore v. United States, 

213 F.3d 705, 713 n.7 (D.C. Cir. 2000) (internal quotation marks omitted); see also Schuchart v. 

La Taberna Del Alabardero, Inc., 365 F.3d 33, 34 (D.C. Cir. 2004) (noting that under Rule 

12(c), facts “must be read in the light most favorable to the non-moving parties, . . . granting 

them all reasonable inferences”).

A court may not consider “matters outside the pleadings” without converting the motion 

to one for summary judgment. FED. R. CIV. P. 12(d); see also Stephens v. Kemp, 469 U.S. 1043, 

1057 (1984) (Brennan, J., dissenting from denial of certiorari) (“Rule 12(c), for example, 

provides that if a court considers matters outside the pleadings in determining whether to enter 

judgment, the motion shall be considered as one for summary judgment and all parties shall be 

given reasonable opportunity to present all material made pertinent to such a motion.” (internal 

quotation marks omitted)). Nevertheless, without triggering the conversion rule, a court may 

consider “documents incorporated into the complaint by reference, and matters of which a court 
11

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 

(2007); see also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).

B. Motion to Supplement an Administrative Record

Under the APA, “the court shall review the whole record or those parts of it cited by a 

party.” 5 U.S.C. § 706. “The record consists of the order involved, any findings or reports on 

which that order is based, and ‘the pleadings, evidence, and other parts of the proceedings before 

the agency.’” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008) (quoting FED.

R. APP. P. 16(a)). As the Supreme Court has explained, “[t]he task of the reviewing court is to 

apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on 

the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 

U.S. 729, 743–44 (1985). Otherwise, the reviewing court would consider de novo material not 

included in the agency record and “reach its own conclusions based on such an inquiry.” Id. at 

744. Such a de novo inquiry is inconsistent with applying the arbitrary and capricious standard, 

where “the focal point for judicial review should be the administrative record already in 

existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 

138, 142 (1973).

Hence, “[i]t is a widely accepted principle of administrative law that the courts base their 

review of an agency’s actions on the materials that were before the agency at the time its 

decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997); see also Hill 

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (“[I]t is black-letter 

administrative law that in an APA case, a reviewing court ‘should have before it neither more 

nor less information than did the agency when it made its decision.’” (quoting Walter O. Boswell 

Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984))); Deukmejian v. NRC, 751 F.2d 

1287, 1325 (D.C. Cir. 1984) (“Were courts cavalierly to supplement the record, they would be 
12

tempted to second-guess agency decisions in the belief that they were better informed than the 

administrators empowered by Congress and appointed by the President.”), vac’d in part on other 

grounds, 760 F.2d 1320 (D.C. Cir. 1985) (en banc). When “the record before the agency does 

not support the agency action, [ ] the agency has not considered all relevant factors, or [ ] the 

reviewing court simply cannot evaluate the challenged agency action on the basis of the record 

before it, the proper course, except in rare circumstances, is to remand to the agency for 

additional investigation or explanation.” Fla. Power & Light, 470 U.S. at 744.

Supplementation of the administrative record is only appropriate in exceptional or 

“unusual” circumstances. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) 

(“[W]e do not allow parties to supplement the record ‘unless they can demonstrate unusual 

circumstances justifying a departure from this general rule.’” (quoting Tex. Rural Legal Aid v. 

Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991))); see also Am. Wildlands, 530 F.3d at 

1002. The D.C. Circuit has recognized three narrow instances in which supplementation of an 

administrative record may be appropriate before reaching the merits of an APA challenge to 

agency action: “(1) if the agency ‘deliberately or negligently excluded documents that may have 

been adverse to its decision,’ (2) if background information was needed ‘to determine whether 

the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain 

administrative action so as to frustrate judicial review.’” City of Dania Beach, 628 F.3d at 590 

(quoting Am. Wildlands, 530 F.3d at 1002). Underlying these exceptions, however, is the strong 

presumption that an agency has properly compiled the entire record of materials that it 

considered, either directly or indirectly, in making its decision. See Maritel, Inc. v. Collins, 422 

F. Supp. 2d 188, 196 (D.D.C. 2006) (“Although an agency may not unilaterally determine what 
13

constitutes the administrative record, the agency enjoys a presumption that it properly designated 

the administrative record absent clear evidence to the contrary.”).

III. DISCUSSION

The defendants have moved for judgment on the pleadings, arguing that the plaintiff’s 

claims are moot and that the plaintiff lacks standing to bring this action. See Defs.’ Mem. at 5–

14. The plaintiff has also moved to supplement the Administrative Record. See Pl.’s Mot. 

Compel at 9–21. These issues are addressed in turn.

A. The Plaintiff’s Claims Are Not Moot

Under Article III of the United States Constitution, this Court “may only adjudicate 

actual, ongoing controversies.” District of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010) 

(quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). The mootness doctrine prohibits the court 

from deciding a case if “events have so transpired that the decision will neither presently affect 

the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Id.

(quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)); see also

Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 272 (D.C. Cir. 2015).

“A case becomes moot . . . ‘only when it is impossible for a court to grant any effectual 

relief whatever to the prevailing party.’” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 

(2016) (quoting Knox v. Serv. Emps. Int’l Union, 567 U.S. 298, 307 (2012)). Yet, “[a]s long as 

the parties have a concrete interest, however small, in the outcome of the litigation, the case is 

not moot.” Id. (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)); see also Sierra Club v. U.S. 

Army Corps of Eng’rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (explaining that a case is not moot 

where “the court has the ‘power to effectuate a partial remedy’” (quoting Church of Scientology 

of Cal. v. United States, 506 U.S. 9, 13 (1992))); Schnitzler v. United States, 761 F.3d 33, 39 

(D.C. Cir. 2014) (holding a plaintiff’s “claim is not moot” where “he has not received all the 
14

relief he sought”); cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“Past 

exposure to illegal conduct does not in itself show a present case or controversy regarding 

injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” (alteration in 

original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))). A party’s “‘prospects of 

success’ on [ ] a claim are ‘not pertinent to the mootness inquiry.’” Schnitzler, 761 F.3d at 39 

n.8 (quoting Chafin, 568 U.S. at 174).

The defendants contend that the plaintiff’s claims are moot because they “are based on a 

2015 EA/FONSI for a poultry farm that is completely constructed and operational,” Def.’s Mem. 

at 7, and because the FSA “has no direct authority over the farm’s operations” or “legal authority 

over the project in question,” Defs.’ Reply Supp. Mot. J. Pleadings (“Defs.’ Reply”) at 7, ECF 

No. 23. The plaintiff counters that these claims are not moot because “completed construction of 

the CAFO does not moot” the claims, Pls.’ Opp’n Defs.’ Mot. J. Pleadings (“Pl.’s Opp’n”) at 15, 

ECF No. 20 (capitalization omitted), given that the defendants “have continuing authority, 

control and obligations related to the ongoing loan guarantee,” id. at 11 (capitalization omitted). 

The plaintiff has the better arguments.

The defendants fail to acknowledge that the agency action at issue—the FSA’s loan 

guarantee for the OMH CAFO—is ongoing. The facts in the complaint indicate that the FSA 

approved the loan guarantee on July 23, 2015, for the maximum 90 percent of the loan, or 

$1,095,300. Compl. ¶ 42. This guarantee continues today, and if the FSA were to revoke its 

guarantee, 90 percent of the loan would be left without a guarantor, potentially exposing the 

lender to substantial risk and jeopardizing the funding for the OMH CAFO. See Pl.’s Opp’n at 

12–13. In addition, the statutes and regulations regarding FSA loan guarantees contemplate the 

agency’s ongoing obligations and responsibilities in connection with a guarantee. For example, 
15

the Secretary of Agriculture must “require [ ] an annual review of the credit history and business 

operation of the borrower,” as well as “an annual review of the continued eligibility of the 

borrower for the loan,” 7 U.S.C. § 1983(2)(A)–(B), and must also “require such provision for 

supervision of the borrower’s operations as the Secretary shall deem necessary to achieve the 

objectives of the loan and protect the interests of the United States,” id. § 1983(4). Under the 

FSA’s Guaranteed Farm Loan Program regulations, lenders must “notify the Agency of any 

scheduled inspections during construction and after the guarantee has been issued.” 7 C.F.R. 

§ 762.130(d)(2). The FSA is also required to approve releases from liability upon an 

individual’s withdrawal from the farming operation or upon liquidation, id. § 762.146(b)–(c), 

and must be notified of any interest rate changes, id. § 762.146(d)(5). Moreover, under the FSA 

regulations in effect at the time of the loan guarantee at issue, the FSA was responsible for “postapproval inspection and monitoring of approved projects” to “ensure that those measures which 

were identified in the preapproval stage and required to be undertaken in order to reduce adverse 

environmental impacts are effectively implemented.” Id. § 1940.330(a) (2015). Thus, the FSA 

remains involved in the OMH CAFO through its ongoing guarantee of 90 percent of the loan and 

the responsibilities associated with that guarantee.

This continued involvement indicates that the plaintiff can be afforded effectual relief 

through a court order. For example, in response to a court order requiring the FSA to undertake 

additional environmental assessments, the FSA could revoke its guarantee or add conditions to 

its continuing guarantee of the loan, which could include requiring additional environmental 

restrictions or mitigating measures. See 7 C.F.R. § 1940.318(g) (2015) (requiring that mitigation 

measures be included “in the offer of financial assistance as special conditions”). Indeed, the 

D.C. Circuit has relied on precisely this reasoning in concluding that a NEPA challenge to the 
16

construction of an oil pipeline was not moot. See Sierra Club, 803 F.3d at 43. In that case, the 

intervenor-defendant pipeline company argued that the appeal was moot “because the agencies 

have already granted the various authorizations at issue and construction of the pipeline is now 

complete,” id., but the court rejected that argument “because an order wholly or partly enjoining 

operation of the pipeline, pending further analyses of the pipeline’s environmental impact, would 

provide some degree of ‘effectual relief,’” id. Notably, the agencies’ continuing involvement in 

the pipeline at issue in Sierra Club is similar to the FSA’s continuing involvement in the OMH 

CAFO: construction of the pipeline required easements, approvals, and permits from the Army 

Corps of Engineers and the Bureau of Indian Affairs, some of which required NEPA analyses. 

See id. at 35–36. Although the pipeline had been completed by the time of the appeal, the D.C. 

Circuit noted that the agencies could still “call for additional mitigation and monitoring, or could 

decide not to renew their respective authorizations,” indicating that the appeal was not moot 

despite the completion of the project. Id. at 43. Although the defendants cite Sierra Club, see

Defs.’ Mem. at 6–7; Defs.’ Reply at 6–8, they fail to grapple with these salient aspects of the 

decision that undermine their mootness argument.

Similarly, the plaintiff correctly points to Buffalo River Watershed Alliance v. 

Department of Agriculture, No. 13-cv-450, 2014 WL 6837005 (E.D. Ark. Dec. 2, 2014), a case 

with similar facts to the pending lawsuit, that relied on the same reasoning to find that the 

plaintiffs had established a redressable injury. In Buffalo River, the plaintiffs alleged that the 

FSA and the Small Business Administration had conducted an inadequate environmental review 

in guaranteeing loans for a pig CAFO. Id. at *1. The court concluded that the agencies could 

“still take the hard look at [the CAFO’s] environmental consequences that they should have in 

the beginning,” id. at *3, and noted that “if that hard look requires the Agencies to put conditions 
17

on their guaranties, then it’s likely that [the CAFO] will comply with those conditions,” id. 

Similar relief could be awarded in this case.

The defendants cite several cases in support of their argument that completion of the 

CAFO renders the plaintiff’s claims moot, but these cases are distinguishable. In Lechliter v. 

University of Delaware, No. 12-cv-16, 2015 WL 12827782 (D. Del. Jan. 16, 2015), the court 

found that the plaintiffs’ challenge to the construction and operation of wind turbines was moot 

because “the wind turbine is already fully constructed and operational,” “the majority of the 

[Department of Energy’s] funding (more than 95 percent) has been spent,” and “the 

[Department’s] involvement in the project is finished.” Id. at *4 n.7. Here, by contrast, the FSA 

continues to guarantee 90 percent of the loan used to construct and operate the OMH CAFO, and 

thus the FSA’s involvement in the project is ongoing. Similarly, in Neighborhood 

Transportation Network, Inc. v. Pena, 42 F.3d 1169 (8th Cir. 1994), the plaintiffs sought to 

enjoin a highway construction project known as the “3HOV” project, id. at 1171, but the court 

concluded that the case was moot because “[c]onstruction on the 3HOV project is now finished” 

and “[a]n order enjoining defendants from further construction on the 3HOV project would serve 

no purpose and afford plaintiffs no relief,” id. at 1172. As discussed above, however, relief 

could be afforded in this case because the FSA’s loan guarantee is still ongoing. The FSA could 

revoke its guarantee pending further environmental analysis or could impose additional 

conditions on its guarantee, thereby affording the plaintiff some measure of relief. See also

Native Ecosystems Council v. Krueger, 649 F. App’x 614, 615 (Mem.) (9th Cir. 2016); Ocean 

Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 871 (9th Cir. 2005); One Thousand 

Friends of Ia. v. Mineta, 364 F.3d 890, 893 (8th Cir. 2004); Airport Neighbors All., Inc. v. 
18

United States, 90 F.3d 426, 429 (10th Cir. 1996); Nat’l Parks & Conservation Ass’n v. FAA, 998 

F.2d 1523, 1525 n.3 (10th Cir. 1993).

The defendants’ arguments also must be rejected as a prudential matter. Accepting the 

defendants’ broad argument that “NEPA claims based on completed projects are moot,” Defs.’ 

Reply at 6, would strip potential plaintiffs of the ability to pursue NEPA claims for projects that

are competed before a case makes its way through the judicial system. Such a conclusion might 

even incentivize agencies and private parties to speed through construction projects to avoid 

NEPA challenges. As the D.C. Circuit has recognized, “[i]f the fact that projects are built and 

operating were enough to make a case nonjusticiable, agencies and private parties could merely 

ignore the requirements of NEPA . . . , build their structures before a case gets to court, and then 

hide behind the mootness doctrine.” Sierra Club, 803 F.3d at 44 (internal quotation marks and 

alterations omitted). Rather, courts should look to whether a court order could “provide some 

degree of ‘effectual relief.’” Id. at 43 (quoting Church of Scientology, 506 U.S. at 12–13). The 

plaintiff in this case challenges not only the construction of the OMH CAFO but also its 

continued operation, see Compl. ¶ 1, and accordingly, a court order requiring FSA to reevaluate 

its guarantee, conduct additional environmental assessments, or add conditions to the guarantee 

could provide the plaintiff with the desired relief, see Sierra Club, 803 F.3d at 44 (“Even 

assuming claims ‘relating to the construction of’ the pipeline were moot, ‘we may still consider 

whether [the agencies] complied with NEPA by adequately addressing the environmental 

impacts resulting from the enhanced use of’ it.” (emphasis and alteration in original) (quoting 

Airport Neighbors All., 90 F.3d at 429)). Thus, the court still has the “power to effectuate a 

partial remedy” in this case, Church of Scientology, 506 U.S. at 13, and the plaintiff’s claims are 

not moot.
19

B. The Plaintiff Has Standing to Pursue Its Claims

The defendants next contend that the plaintiff lacks standing because “its alleged injury 

cannot be redressed by any action FSA can take.” Defs.’ Mem. at 7.5 Again, the defendants’

argument is misplaced.

“[T]he requirement that a claimant have ‘standing is an essential and unchanging part of 

the case-or-controversy requirement of Article III.’” Davis v. FEC, 554 U.S. 724, 733 (2008) 

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Where, as here, organizations 

claim representational standing on behalf of their members, the organizations may bring suit so 

long as (1) “at least one of their members would otherwise have standing to sue in his or her own 

right”; (2) “the interests they seek to protect are germane to their organizations’ purposes”; and 

(3) “neither the claim asserted nor the relief requested requires the participation of individual 

members.” Air All. Houston v. EPA, No. 17-1155, 2018 WL 4000490, at *5 (D.C. Cir. Aug. 17, 

2018) (quoting Sierra Club v. EPA, 755 F.3d 968, 973 (D.C. Cir. 2014)). Thus, the Court’s 

organizational standing analysis involves two distinct determinations: first, whether the 

organization has put forward members who “would otherwise have standing to sue in their own 

right,” and second, whether the organization itself fulfills the remaining requirements for 

organizational standing. Id. (quoting Pub. Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1289 (D.C. 

Cir. 2007)). These two determinations are taken in turn.

 5 The defendants also argue that the plaintiff lacks standing to pursue its NEPA claims “because it falls 

outside the ‘zone of interests’ regulated by” the Consolidated Farm and Rural Development Act (“CONACT”), 7 

U.S.C. § 1921, et seq., given that the “Plaintiff is not an intended beneficiary of the CONACT or its implementing 

regulations because Plaintiff is neither an agricultural lender nor a farm loan applicant.” Defs.’ Mem. at 11–12. The 

plaintiff does not allege any claims under the CONACT, however, and does not cite to that law anywhere in its 

complaint. See Pls.’ Opp’n at 31–33. Thus, the defendants now agree that “the Court need not adjudicate whether 

Plaintiff falls within the zone of interest of the CONACT,” Defs.’ Reply at 16, and that issue will not be addressed.
20

1. At Least One of the Plaintiff’s Members Would Have Standing to Sue in 

His or Her Own Right

To establish Article III standing as an individual, a claimant must show: (1) that he or she 

has suffered an “injury in fact” that is (a) “concrete and particularized” and (b) actual or imminent,

not conjectural or hypothetical; (2) that the injury is “fairly traceable to the challenged action of 

the defendant”; and (3) that it is “likely,” as opposed to merely speculative, that the injury will be 

“redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 572 U.S. 118, 125 (2014); Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014).

These traditional standing requirements differ slightly where, as here, the plaintiff seeks 

to enforce procedural, rather than substantive, rights. See Mendoza, 754 F.3d at 1010. “When 

plaintiffs challenge an action taken without required procedural safeguards, they must establish 

the agency action threatens their concrete interest.” Id. (citing Fla. Audubon Soc’y v. Bentsen, 94 

F.3d 658, 664 (D.C. Cir. 1996)). Once the plaintiff has shown a “concrete interest” that is more 

than “a mere general interest in the alleged procedural violation common to all members of the 

public,” id. (quoting Fla. Audubon Soc’y, 94 F.3d at 664), “the normal standards for immediacy 

and redressability are relaxed,” id. (citing Lujan, 504 U.S. at 572 n.7). Thus, the plaintiff “need 

not demonstrate that but for the procedural violation the agency action would have been 

different,” id. (citing Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 

2005)), and does not need to “establish that correcting the procedural violation would necessarily 

alter the final effect of the agency’s action on the plaintiff’s interest,” id. “Rather, if the plaintiff[ ] 

can ‘demonstrate a causal relationship between the final agency action and the alleged injuries,’ 

the court will ‘assume[ ] the causal relationship between the procedural defect and the final 

agency action.’” Id. (alteration in original) (quoting Ctr. for Law & Educ., 396 F.3d at 1160).
21

The defendants “do not believe the Complaint demonstrates that Plaintiff has alleged a 

sufficiently concrete injury that is traceable to FSA.” Defs.’ Mem. at 8 n.1. Nonetheless, 

because the defendants believe that “even in the event that Plaintiff could meet those requirements,

the claims cannot be redressed by any action the Agency can take,” id., they focus only on 

redressability and do not discuss injury in fact or causation. The plaintiff thus “limits its 

response to the challenge raised in the government’s motion” and similarly addressed only 

redressability. Pl.’s Opp’n at 21 n.7. The law is well established, however, that “[t]he party 

invoking federal jurisdiction bears the burden of establishing these elements,” Lujan, 504 U.S. at 

561, and that “[w]hen there is doubt about a party’s constitutional standing, the court must 

resolve the doubt, sua sponte if need be,” Lee’s Summit, Mo. v. Surface Transp. Bd., 231 F.3d 

39, 41 (D.C. Cir. 2000). Accordingly, injury in fact and causation are addressed first, followed 

by redressability.

a) Injury in Fact and Causation

The Supreme Court has explained that “environmental plaintiffs adequately allege injury 

in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and 

recreational values of the area will be lessened’ by the challenged activity.” Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club 

v. Morton, 405 U.S. 727, 735 (1972)); see also WildEarth Guardians v. Jewell, 738 F.3d 298,

305–06 (D.C. Cir. 2013) (finding affidavits from environmental groups’ members “attesting to 

those members’ aesthetic interests in the land . . . and specific plans to visit the area regularly for 

recreational purposes” sufficient to support Article III standing). Moreover, as discussed above, 

plaintiffs alleging procedural violations need only establish that “the agency action threatens their 

concrete interest,” Mendoza, 754 F.3d at 1010 (citing Fla. Audubon Soc’y, 94 F.3d at 664), and 
22

that this concrete interest is more than “a mere general interest in the alleged procedural violation 

common to all members of the public,” id. (quoting Fla. Audubon Soc’y, 94 F.3d at 664).

The plaintiff has established an injury in fact “with the manner and degree of evidence 

required” at this stage in the litigation. Lujan, 504 U.S. at 561. The complaint describes two of 

the plaintiff’s members who are harmed by the ongoing operation of the OMH CAFO. One 

member lives next door to the OMH CAFO and has been subjected to “loud noises at all hours of 

the day, bright lights that remain on all night, foul odors, and large numbers of flies in and 

around her residence,” such that she is now “concerned that she and her visitors will experience 

adverse health effects from the CAFO’s pollution” and is “fearful to allow family members with 

asthma to visit because they may be more susceptible to air pollution.” Compl. ¶ 8. A second 

member “regularly fishes for bass in Watts Creek—which is in the vicinity of the CAFO—and 

the downstream Choptank River.” Id. This member “has invested significant time and resources 

into creek stocking and restoration projects” and “is concerned about the CAFO’s likely water 

pollution impacts and the general impacts of industrial development on the character and 

aesthetic beauty of the areas where he fishes.” Id. These harms affect the recreational and 

aesthetic interests of the plaintiff’s members and are concrete enough to be more than “a mere 

general interest in the alleged procedural violation common to all members of the public,” 

Mendoza, 754 F.3d at 1010 (citing Fla. Audubon Soc’y, 94 F.3d at 664), such that these interests 

are sufficient to establish an injury in fact. See also Summers v. Earth Island Inst., 555 U.S. 488, 

494 (2009) (“While generalized harm to the forest or the environment will not alone support 

standing, if that harm in fact affects the recreational or even the mere esthetic interests of the 

plaintiff, that will suffice.”).
23

Moreover, the injury in fact alleged by the plaintiff through its members is traceable to 

and caused by the defendants’ actions. Under the relaxed procedural standing requirements, the 

court “assumes the causal relationship between the procedural defect and the final agency 

action,” but the plaintiff “must still demonstrate a causal relationship between the final agency 

action and the alleged injuries.” Ctr. for Law & Educ., 396 F.3d at 1160. Here, the alleged 

procedural defect is “an inadequate EA/FONSI describing the environmental impacts of the 

CAFO,” Compl. ¶ 43, which led to the final agency action of “approv[ing] the loan guarantee,” id. 

This final agency action resulted in the FSA guaranteeing 90 percent of the loan “for the purpose 

of constructing and operating a poultry farm on the designated parcel of real estate.” Defs.’ Mem.

at 4 (citing Compl. ¶¶ 42–43). A loan for the OMH CAFO would have been unlikely without this 

guarantee, given that an applicant for an FSA loan guarantee must certify that the applicant is 

“unable to obtain sufficient credit elsewhere without a guarantee to finance actual needs at 

reasonable rates and terms.” 7 C.F.R. § 762.120(h)(1). Since the applicant would be unable to 

obtain sufficient credit elsewhere, the lack of an FSA guarantee likely would mean no loan, and 

no loan would mean no CAFO. This causal link is sufficient to establish a causal relationship 

between the final agency action—the loan guarantee—and the plaintiff’s claimed injuries.

b) Redressability

The defendants focus on redressability, arguing that “[b]ecause the remedy sought by the 

Plaintiff will not redress Plaintiff’s injuries, the Plaintiff lacks standing, and its claims should be 

dismissed.” Defs.’ Mem. at 8. The plaintiff, in turn, argues that, “[f]or many of the same 

reasons that this case is not moot, an order from this Court vacating or otherwise enjoining the 

loan guarantee ‘at least until alleged NEPA deficiencies are cured’ will redress Plaintiff’s 

injuries.” Pl.’s Opp’n at 21. The plaintiff, again, has the better argument.
24

“Redressability examines whether the relief sought, assuming that the court chooses to 

grant it, will likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon 

Soc’y, 94 F.3d at 663–64 (footnote omitted). As discussed above, the redressability requirement 

is relaxed in cases involving procedural violations, such that “[t]he person who has been 

accorded a procedural right to protect his concrete interests can assert that right without meeting 

all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at 572 n.7. The 

plaintiff in such a case does not need to “establish that correcting the procedural violation would 

necessarily alter the final effect of the agency’s action on the plaintiff’s interest.” Mendoza, 754 

F.3d at 1010. “Rather, if the plaintiff[ ] can ‘demonstrate a causal relationship between the final 

agency action and the alleged injuries,’ the court will ‘assume the causal relationship between 

the procedural defect and the final agency action.’” Id. (alteration omitted) (quoting Ctr. for Law 

& Educ., 396 F.3d at 1160). Thus, for example, “one living adjacent to the site for proposed 

construction of a federally licensed dam has standing to challenge the licensing agency’s failure 

to prepare an environmental impact statement, even though he cannot establish with any 

certainty that the statement will cause the license to be withheld or altered, and even though the 

dam will not be completed for many years.” Lujan, 504 U.S. at 572 n.7.

The plaintiff satisfies the relaxed redressability requirement for procedural violations. By 

virtue of the FSA’s continuing guarantee of the OMH CAFO’s loan, the FSA continues to exert 

some control over the CAFO and maintain some involvement in the CAFO’s ongoing operations. 

If, for example, a court order directed the FSA to withdraw its loan guarantee pending further 

environmental assessments or to conduct a supplemental environmental assessment and impose 

additional conditions on its guarantee, the plaintiff’s alleged injury would, in some measure, be 

redressed. Indeed, the defendants concede that “this Court has the power to remand the 
25

EA/FONSI for reconsideration or further explanation and to vacate the loan guarantee,” Defs.’ 

Mem. at 10, but they argue that “neither of those actions would prevent the continuing operation 

of the poultry farm,” id. The plaintiff has established, however, that “an order enjoining 

payments on the loan guarantee until NEPA compliance was achieved would redress Plaintiff’s 

procedural rights because the CAFO would be unlikely to risk losing the federal guarantee [by] 

ignoring its NEPA obligations.” Pl.’s Opp’n at 24. Given that the FSA guarantees 90 percent of 

the OMH CAFO loan, the temporary withdrawal or revocation of that guarantee would put a 

substantial portion of the OMH CAFO’s funding at risk. If, as a result of further environmental 

assessments, the FSA were to impose additional mitigation measures or conditions on its 

guarantee, the OMH CAFO would likely comply with those conditions, given that the CAFO 

would be “unable to obtain sufficient credit elsewhere . . . at reasonable rates and terms.” 7 

C.F.R. § 762.120(h)(1). Thus, the plaintiff’s injury would likely be redressable by a court order 

requiring a reevaluation of the FSA’s loan guarantee pending further environmental assessments.

The defendants nevertheless contend that, despite the relaxed redressability standard for 

procedural violations, “[d]emonstrating redressability is substantially more difficult when the 

plaintiff is not subject to the challenged government action” and “[w]hen the plaintiff seeks to 

change the behavior of the defendant only as a means to alter the conduct of a third party.” 

Defs.’ Mem. at 8 (internal quotation marks omitted). In cases where “the necessary elements of 

causation and redressability . . . hinge on the independent choices of the regulated third party, ‘it 

becomes the burden of the plaintiff to adduce facts showing that those choices have been or will 

be made in such manner as to produce causation and permit redressability of injury.’” Nat’l 

Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (quoting Lujan, 

504 U.S. at 562)). In this case, however, the plaintiff has offered more than “mere ‘unadorned 
26

speculation’ as to the existence of a relationship between the challenged government action and 

the third-party conduct.’” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 

(1976)). The plaintiff’s members’ injuries derive from the construction and ongoing operation of 

the OMH CAFO, see Compl. ¶¶ 1, 8, 48, and, given the borrower’s inability to “obtain sufficient 

credit elsewhere,” 7 C.F.R. § 762.120(h)(1), that construction and operation was made possible 

by the FSA’s guarantee of 90 percent of the loan. While the defendants accuse the plaintiff of 

attempting to “convert the [FSA] into an environmental regulator,” Defs.’ Reply at 1, the 

gravamen of the plaintiff’s complaint is that the FSA must comport with the NEPA. Given that 

the FSA must follow NEPA guidelines in issuing a loan guarantee and has continuing control 

over the loan guarantee that makes the continued operation of the CAFO possible, the relaxed 

redressability requirement is satisfied.

The defendants cite Center for Biological Diversity v. U.S. Department of Housing & 

Urban Development, 541 F. Supp. 2d 1091 (D. Ariz. 2008), as an example in support of their 

third-party argument. See Defs.’ Mem. at 10–11. As the plaintiff notes, however, “[t]his is a 

curious case to cite for the argument that this Court should dismiss this case for lack of standing” 

since the plaintiffs in that case “had standing to challenge the agencies’ loan guarantees.” Pl.’s 

Opp’n at 28. The plaintiffs in that case challenged the defendants’ compliance with the 

Endangered Species Act in connection with providing loan guarantees and other financial 

assistance for residential and commercial development projects around a conservation area. Ctr. 

for Biological Diversity, 541 F. Supp. 2d at 1093–94. The district court first concluded that “the 

Plaintiffs have standing to bring their claims” because “it is likely, not merely speculative, that 

the injury will be redressed by a favorable decision.” Id. at 1095 (citing Lujan, 504 U.S. at 560). 

On the merits, however, the court noted that because the defendant agencies’ actions “stop[ped] 
27

at approval based on the financial status and needs of the applicant” and did not have “any 

ongoing effect beyond simply approving a person or entity for financial assistance,” id. at 1099, 

their actions did not amount to “major federal action” that is subject to the Endangered Species 

Act, id. at 1100. Notably, the instant case does not involve a determination of whether the FSA’s 

loan guarantee was a “major federal action”—rather, the parties agree that the loan guarantee 

required an environmental assessment. See Defs.’ Answer ¶ 21; Defs.’ Mem. at 2. At issue is 

instead whether the plaintiff’s injury is redressable by an order of this Court. Here, unlike in 

Center for Biological Diversity, the FSA remains involved in the project at issue, and given the 

FSA’s continuing guarantee of 90 percent of the loan supporting the OMH CAFO’s ongoing 

operations, the plaintiff has established that “it is likely, not merely speculative, that the injury will 

be redressed by a favorable decision.” Ctr. for Biological Diversity, 541 F. Supp. 2d at 1095.

The defendant also attempts to distinguish Buffalo River, a case with substantially similar 

facts to the pending case, arguing that Buffalo River “is not supported by reasoning or law, is 

contrary to the law of this Circuit and has no binding authority here.” Defs.’ Reply at 13. 

Although that case is not binding, it is persuasive. To recap, in Buffalo River, the plaintiffs 

claimed that the FSA and the Small Business Administration violated the NEPA by guaranteeing 

loans for a pig CAFO without conducting adequate EAs. Buffalo River, 2014 WL 6837005, at 

*1. Regarding redressability, the court took note of “the federal Agencies’ ongoing role in 

monitoring any conditions placed on their guaranties,” id. at *3 (citing 7 C.F.R. § 1940.330), and 

explained that “[t]he Agencies can still take the hard look at [the CAFO’s] environmental 

consequences that they should have in the beginning,” id. Thus, “[g]iven the essentialness of the 

federal Agencies’ guaranties and their continuing authority to monitor compliance with any 

conditions placed on those guaranties,” the court found it “likely that more environmental review 
28

will change how [the CAFO] operates its farm.” Id. at *4. The defendants contend that Buffalo 

River “is inconsistent with controlling D.C. Circuit precedent” and that “[t]he law of this Circuit 

provides it must be likely, as opposed to merely speculative, that the injury will be redressed by a 

favorable decision.” Defs.’ Reply at 14 (internal quotation marks omitted). That is precisely the 

standard used in Buffalo River, however—the court found it “likely that more environmental 

review” would change the ways in which the CAFO operated. Buffalo River, 2014 WL 6837005, 

at *4. Buffalo River is therefore persuasive in this case, and for similar reasons, the plaintiff here 

has shown that “[m]ore study of [the OMH CAFO’s] environmental consequences, and any 

resulting conditions on reinstated guarantees, will likely redress [the plaintiff’s] injuries.” Id. 

Accordingly, the plaintiff has shown injury in fact, causation, and redressability, and has 

therefore established that at least one of its members would have standing in his or her own right.

2. The Plaintiff Satisfies the Remaining Requirements for Organizational 

Standing

The remaining requirements for organizational standing are easily satisfied in this case. 

The interest that the plaintiff seeks to protect—an interest in remedying the environmental harms 

caused by the OMH CAFO—is germane to the plaintiff’s purpose of “champion[ing] healthy 

food and clean water for all” and “reduc[ing] CAFO pollution.” Compl. ¶ 8. Finally, neither the 

claims asserted nor the injunctive relief requested would require the participation of the 

individual members. Thus, the plaintiff meets the requirements for organizational standing, and 

the defendants’ motion for judgment on the pleadings is denied.

C. The Plaintiff’s Motion to Compel the Complete Administrative Record

The plaintiff has moved to compel the complete Administrative Record, contending that 

the defendants have “refuse[d] to include in the administrative record any documents related to 

the loan guarantee, including the loan guarantee itself, other than those documents also related to 
29

FSA’s NEPA analysis.” Pl.’s Mot. Compel at 2. According to the plaintiff, “[t]he loan-related 

records are critical to evaluating the legality of both of the interrelated federal actions 

challenged—the loan guarantee approval and the final EA/FONSI for the loan guarantee—and 

Plaintiff has concrete evidence that these records were before the agency decision makers.” Id.

at 9. In addition, the plaintiff notes that the defendants have “included such documents in the 

administrative record in a recent, similarly situated case.” Id. (referring to Buffalo River, 2014 

WL 6837005).

The defendants previously refused to include the loan-related documents in the 

Administrative Record, see Jt. Status Report at 2–3; Pl.’s Mot. Compel at 3–6. After asking for 

an extension of time to respond to the plaintiff’s motion, the defendants filed a one-page 

response explaining that they now “agree to provide the Court and the Plaintiff with the financial 

documents considered by FSA in issuing the guarantee.” Defs.’ Opp’n Pl.’s Mot. Compel AR 

(“Defs.’ Opp’n Mot. Compel”) at 1, ECF No. 22. Although the defendants “do not believe the 

financial record documents are necessary for judicial review of this case” because the plaintiff 

“challenges only whether FSA completed an appropriate environmental analysis under NEPA 

and does not dispute the FSA’s financial analysis,” id., the defendants have agreed to provide the 

requested documents “provided that the parties can agree to a protective order that ensures the 

safety and careful protection of the sensitive financial and personal information contained in the 

documents,” id. Accordingly, the plaintiff’s motion to compel the complete Administrative 

Record will be granted, and the defendants shall supplement the Administrative Record with the 

final loan guarantee and any other loan and loan-guarantee-related documents, including internal 

and external correspondence, in the possession of the defendants at the time the FSA made its 

decision to guarantee the OMH CAFO’s loan, including, but not limited to, documents 
30

previously disclosed to the plaintiff through any FOIA requests and that have been specifically 

identified for the government in correspondence.

6

 The defendants shall also produce a privilege 

log identifying and justifying any claims of privilege for materials that continue to be withheld 

and for any redactions to materials that are included in the Administrative Record. If any 

portions of this completed Administrative Record contain financial information that the 

defendants believe should be protected from public dissemination, the defendants may seek 

appropriate protective measures.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion for judgment on the pleadings is 

denied and the plaintiff’s motion to compel the complete administrative record is granted. An 

appropriate Order accompanies this Memorandum Opinion.

Date: September 7, 2018

__________________________

BERYL A. HOWELL

Chief Judge

 6 Regardless of the defendants’ cooperation, the plaintiff has satisfied the legal requirements for 

supplementation of the Administrative Record. The plaintiff’s motion explains that “[d]efendant Deanna Dunning 

was the FSA Farm Loan Officer who was responsible for both reviewing farm loan guarantee applications and

preparing the environmental assessments,” Pl.’s Mot. Compel at 14 (emphasis in original), and thus that “the 

environmental analysis documents and the loan guarantee application documents are part of one combined agency 

decision-making process,” id. These documents were therefore “actually before the decisionmakers,” Nat’l Mining 

Ass’n v. Jackson, 856 F. Supp. 2d 150, 156 (D.D.C. 2012) (internal quotation marks omitted), given that Dunning 

“was responsible for both the loan guarantee process and the related EA process” and regularly communicated with 

the lender regarding “various EA documentation necessary to complete the loan guarantee application, including a 

site plan, documentation showing approval of storm water and erosion control plans, and an approved 

comprehensive nutrient management plan.” Pl.’s Mot. Compel at 16–17 (citing Heinzen Decl., Ex. E, Letter from 

Deanna Dunning (FSA) to Cara Sylvester (MidAtlantic Farm Credit) (dated Jan. 8, 2015) at 1–2, ECF No. 19-5). 

Accordingly, even without the defendants’ change in position during briefing on the pending motions, the plaintiff 

has established that the loan-related documents are “background information [ ] needed ‘to determine whether the 

agency considered all the relevant factors,” City of Dania Beach, 628 F.3d at 590 (quoting Am. Wildlands, 530 F.3d 

at 1002), such that the plaintiff’s motion should be granted.